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Family Law

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Court of Protection Practice and Procedure Conference 2016

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09 JUL 2007

CONTEMPT: Gull v Gull [2007] EWCA Civ 900

(Court of Appeal; Tuckey, Wilson and Lawrence Collins LJJ; 31 August 2007)

Non-molestation orders were made under Family Law Act 1996 prohibiting the mothers adult son, who was of low intelligence, from returning to the mothers home. In the 5 years since the making of the original order there had been at least 20 breaches. These had been dealt with at a series of committal hearings, resulting in a mixture of suspended sentences and periods of up to 6 months in prison. The most recent breach had taken place on the day of the son's release from custody for the previous breach. The son had telephoned to say that he was coming home, and had then knocked at the door asking to be let in, continuing to knock and to ring the bell until the police arrested him. The son was aware of the nature of the injunction, and aware that he had breached it, but continued to return to the only home he had ever known in the absence of alternative suitable accommodation. The judge accepted that the son had learning difficulties and was ill equipped to function independently in the community. There was medical evidence that the son failed to learn from experience. Nonetheless, because of the history of disobedience, the judge sentenced the son to to 21 months' imprisonment.

Given that this was a case concerning a vulnerable adult, of low intelligence and with learning difficulties close to, although they did not reach, the threshold of disability, who had returned home without engaging in or threatening violence, the sentence was excessive, notwithstanding the importance of imposing sanctions for repeated deliberate breaches of court orders. The sentence would be reduced to 12 months. This was a case that called out for pro-active steps to be taken by the sons advisers, the local authority and, if possible, by the family. If called upon, community leaders might be able to mediate the problem. The court expressed the very strong opinion that a plan must be formulated by the sons advisers in conjunction with the local authority to manage the son's release into the community, otherwise there was a very strong likelihood that he would be in breach again. The man had great difficulty in living independently and had never had permanent accommodation outside the family home; he required support in stable accommodation where his needs might be met. He was entitled to accommodation as a homeless person, but seemed to have some difficulty with accepting the hostel accommodation that might be provided. Future orders would be made under the new s 42A of the Family Law Act 1996, inserted (as from July 1, 2007) by the Domestic Violence, Crime and Victims Act 2004. The effect would be to criminalise breaches, so that wider range of sentencing options would be available to the court.

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